When working in criminal law, especially in relation to sensitive subjects such as sexual offences and murder, we are often asked to advise clients whether to plead guilty or not guilty to certain offences.
NB: Please be aware the article below contains content that may be unsettling to some readers.
The legal pitfalls of such a decision can be vast, on the basis that a minor fact in any criminal law case can have a major impact on the prosecution’s case and the defence of the accused. The discussion below considers section 325 of the Criminal Code – Sexual Penetration without Consent in this regard.
Criminal Law Technicalities
Sexual Penetration without Consent – section 325 of the Criminal Code.
In order to obtain a conviction, the Prosecution must establish the following elements:
(a) The identity of the victim;
(b) The identity of the accused;
(c) That sexual penetration occurred;
(d) The absence of consent by the victim; and
(e) The intent of the accused to have intercourse with the victim without the victim’s consent.
A person who is convicted of this crime is liable to imprisonment for 14 years.
Statistically, there is a lower rate of conviction in relation to sexual offences. In many cases of alleges sexual offences there is very little independent evidence and these types of cases are often boils down to the proverbial, “he said she said”.
Each of the above elements of the offence must be proven beyond a reasonable doubt.
Consent is a particularly technical element to establish.
Consent means a consent freely and voluntarily given and, without in any way affecting the meaning attributable to those words, consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit, or any fraudulent means.
There is a fine line between consent and mere submission or acquiescence. Further, implied consent, especially in the context of one person being intoxicated also presents difficulties.
Under the Criminal Code, a child who is under the age of 13 is incapable of consenting to any sexual offence whatsoever. If a child is between the ages of 13 and 16, then they are able to legally give consent to sexual act, however, in this instance an alternative sexual offence may apply due to the fact that the child is under the legal age of 16.
Intent of the Accused
The intention of the accused is inferred from the actions of the accused which is why a small act by an accused person can indicate that intention existed to sexually penetrate a victim without their consent.
If any of the above elements cannot be established, then the offence under 325 of the Criminal Code cannot be proven.
However, a lesser sexual offence may still have been committed.
As demonstrated above criminal law is far from black and white, but instead many shades in between. A criminal law case isn’t often just about whether you did or didn’t do it, as the law is made up of many different elements that may need to be taken into account.
Should you find yourself in the position of being arrested and charged with a criminal offence, please don’t hesitate to contact us about your rights and the options potentially available to you.
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